Bar Counsel: 2005: The Year That Was

From Washington Lawyer, April 2006

By Gene Shipp

Let’s step away from our substantive articles for one column and look at the 2005 disciplinary year. Because 36.2 percent of your bar dues—or $62.67 per member out of the $173 dues paid by active members—goes to support the disciplinary system, an update would appear to be in order.

The Office of Bar Counsel tracks the type of law an attorney was practicing when we decided to investigate the attorney’s conduct. Table 1 shows the field of practice data on cases constituting more than 5 percent of our intake during 2005.

Table 1. Type of Law Practiced by Attorneys Investigated in 2005

Type of Law

Number of Cases

Percent of Docketed Matters

Civil litigation

84

25

Immigration

49

14

Real estate

36

11

Personal injury

29

9

Criminal law

24

7

Personal conduct not associated with the practice of law

18

5

We note a change in the field of law at the top of the list. Since 2000 personal injury law has always been number one, but in 2005 civil litigation took over that dubious honor. Immigration law has steadily climbed in number of investigations, and unfortunately in number of prosecutions, by our office.

The office also tracks data on the type of misconduct alleged that results in an investigation of the attorney’s conduct (see table 2).

The only change over the past five years is that the conflicts category has now passed that of allegations of disbursement irregularity or attorney theft, which has declined. The decline in disbursement irregularity is a trend that is very encouraging for the image of lawyers. The old saying “If you cannot trust your lawyer with your money, who can you trust?” comes to mind.

Table 2. Type of Misconduct Alleged (2005)

Type of Law

Number of Cases

Percent of Docketed Matters

Neglect

113

33

Dishonesty

70

21

Conduct prejudicial

34

10

Conflicts

21

6

Disbursement irregularity

20

6

Ineffective representation

16

5

Misappropriation is an area in which the entire disciplinary system has been very aggressive. From disbarments by the D.C. Court of Appeals based upon recommendations by the Board on Professional Responsibility, to sophisticated investigation techniques now employed by the Office of Bar Counsel, attorney theft remains an important focus of the disciplinary system.

Our 2005 data show that attorneys admitted to the D.C. Bar in the late 1980s to the early 1990s are the ones getting in trouble. At one point we calculated that attorneys 9 to 16 years into their professional career are most at risk. With the rare exception, this statistic seems to be holding true.

Delay in the disciplinary system has been on everyone’s mind for the past several years. We have made progress at all levels of the system. Cases under investigation by the Office of Bar Counsel that are over 90 days old have been reduced from a high of 382 in August 2004 to a low of 256 in November 2005. (The number stood at 259 as of January 31, 2006.) We have completed all cases that came in prior to 2002. The Board on Professional Responsibility, which has had a very productive year moving cases that have come before it, has virtually eliminated delay at the hearing committee level. The Court of Appeals has been issuing opinions in record time.

Although all this is good news, much more needs to be done. The D.C. Bar’s Disciplinary System Study Committee (Payton-Goldfrank Committee) has just released for public comment its report on recommended changes to the disciplinary system. (See story on page 17.) Please take the time to review it. All suggestions will be welcomed by the committee and the disciplinary system. The Board on Professional Responsibility and the Office of Bar Counsel are reviewing techniques and organization of bar counsel offices nationwide. We hope to have some proposed changes in place by July 1.

The goals of the disciplinary system are to protect the public from unethical attorneys, to protect attorneys from unfounded complaints, and to protect the image and integrity of the legal community. The disciplinary system is dedicated to those goals. We will build upon what 2005 has taught us. We are available to any group, legal or public, that wants education, a speaker, or information on the services that we provide. (Call Lawrence Bloom, staff attorney in charge of our speakers bureau, at 202-638-1501 to arrange for a speaker.)

We hope 2006 brings fewer complaints, less misconduct, and no letters to you from the Office of Bar Counsel.

Disciplinary Actions Taken by the Board on Professional ResponsibilityOriginal Matters
In re Frederic D. Leffler. Bar No. 388671. December 23, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Leffler. Leffler was convicted in the United States District Court for the District of Maryland of six counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2 and 11 counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 2, crimes involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

In re Thomas P. Liniak. Bar No. 411968. December 8, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Liniak by consent, nunc pro tunc to August 8, 2005.

In re Phyllis J. Outlaw. Bar No. 317537. December 23, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Outlaw for 60 days. Outlaw failed to provide competent and diligent representation; failed to communicate; failed to take prompt action to preserve her client’s interests before the expiration of a statute of limitations; and concealed the errors from her client. Rules 1.1(a), 1.1(b), 1.3(a), 1.4(a), 1.4(b), and 8.4(c).

In re Gregg M. Paley. Bar No. 417303. December 23, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Paley by consent.

In re Patrick J. Smith. Bar No. 296822. December 23, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Smith. Smith was found guilty in the Circuit Court for Montgomery County, Maryland, of intimidating a witness in violation of Maryland Criminal Code § 9-305 and impersonating a police officer in violation of Maryland Public Safety Code § 3-502(b). The board concluded that Smith’s conviction for intimidating a witness through threats, force, or corrupt means involved moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

In re Edward L. Tezak. Bar No. 429121. December 23, 2005. The Board on Professional Responsibility recommends that the D.C. Court of Appeals disbar Tezak. Tezak was convicted in the United States Court for the Western District of Washington of wire fraud in violation of 18 U.S.C. §§ 1343 and 2 and money laundering in violation of 18 U.S.C. § 1956(a)(1)(B). The board concluded that Tezak’s conviction for wire fraud involved moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

Reciprocal Matters
In re Richard G. Cervizzi. Bar No. 938282. December 23, 2005. In a reciprocal matter from Maine, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Cervizzi. The Maine Supreme Judicial Court disbarred Cervizzi. In its order of disbarment, the Maine court found, among other things, that (1) upon receiving notice that he had been summarily suspended from the practice of law for his failure to comply with his Maine tax obligations, Cervizzi failed to inform his clients, courts, opposing counsel, or other required individuals or agencies of that suspension; (2) thereafter Cervizzi failed to assist many of his clients to obtain new counsel and abandoned most of his clients and the legal matters they had entrusted to him; (3) Cervizzi repeatedly ignored the Maine board and Bar Counsel’s efforts to contact him about grievances filed against him and the whereabouts of clients’ files; (4) in at least two matters, Cervizzi continued to represent clients in court in direct violation of his suspension notice; (5) in one of those matters, a pending criminal case, Cervizzi signed a document that made it appear that he had signed the document before he had been suspended from practice; (6) in another case, Cervizzi signed a document setting forth his obligation to disburse fees and charges totaling approximately $1,000 to a mortgage broker concerning a loan transaction for which he acted as settlement agent with no evidence that he ever made the required payment; (7) Cervizzi failed to comply timely with the court’s order for custody of files requiring him to turn over his former clients’ files to Bar Counsel; and (8) Cervizzi abandoned each of the four clients who testified at the hearing, refusing to respond to inquiries by each of the four, and refusing to return files or documents to his clients.

In re John W. Hermina. Bar No. 421790. December 23, 2005. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical reciprocal discipline and publicly censure Hermina. The Court of Appeals of Maryland publicly reprimanded Hermina for making false statements of material fact to a tribunal; knowingly disobeying obligations under rules of the tribunal; making a false statement as to the qualification or integrity of a judge; violating rules of professional conduct; conduct involving dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration of justice.

In re David A. Jones. Bar No. 223933. December 28, 2005. In a reciprocal matter from Pennsylvania and Massachusetts, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Jones, nunc pro tunc to November 8, 1999. The Supreme Court of Pennsylvania disbarred Jones for ethical misconduct over six years in three separate charges regarding his defense or prosecution of civil actions on his own behalf or on behalf of his wife. Jones made nonmeritorious claims and contentions, knowingly made false statements to a tribunal, and engaged in dishonesty and conduct prejudicial to the administration of justice. The Supreme Judicial Court for Suffolk County, Massachusetts, disbarred Jones on the basis of his Pennsylvania discipline.

In re Mark D. Mestel. Bar No. 928200. December 23, 2005. In a reciprocal matter from Washington State, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical reciprocal discipline and issue Mestel a board reprimand. The Disciplinary Board of the Washington State Bar Association issued a disciplinary order reprimanding Mestel, by stipulation, for jointly representing two clients with regard to the same matter “without consulting them about the implications and risks of the multiple representation, and by failing to obtain written conflict waivers.”

In re Sang K. Park. Bar No. 416551. December 28, 2005. In two consolidated reciprocal matters from Virginia, the Board on Professional Responsibility recommends that the D.C. Court of Appeals suspend Park for six months, nunc pro tunc to December 9, 2004. In the first matter, Park was retained to represent a client in an immigration proceeding and was found by the Virginia State Disciplinary Board to have engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on a lawyer’s fitness to practice law; held himself out publicly as, or implied that he was, a recognized or certified specialist (outside of the exception to the rule); and failed to attend promptly to matters undertaken for a client until completed. In the second matter, Park was retained for the preparation, execution, and subsequent probate of a will and the preparation of a visa application. The Virginia board found that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, and that he failed to act with competence and to demonstrate the specific legal knowledge, skill efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters. Three members of the board concurred with the opinion of the majority concerning the sanction, but dissented with regard to the nunc pro tunc treatment.

In re Oscar W. Weekes. Bar No. 446257. January 20, 2006. In a reciprocal matter from Massachusetts, the Board on Professional Responsibility recommends that the D.C. Court of Appeals hold this matter in abeyance until final action by a Massachusetts disciplinary court, that Bar Counsel notify the court of such final action, and that the interim suspension of Weekes remain in effect until the issue of the imposition of reciprocal discipline can be determined under D.C. Bar R. XI, § 11. Weekes was temporarily suspended from the practice of law by the Supreme Judicial Court of Massachusetts.

In re N. Jerome Willingham. Bar No. 379780. December 20, 2005. In a reciprocal matter from North Carolina, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Willingham. The Disciplinary Hearing Commission of the North Carolina State Bar found that from approximately March 2002 to January 2004 Willingham misappropriated client funds in three separate matters and engaged in other misconduct over a substantial period of time, including conduct involving dishonesty, conflict of interest, and ignoring or obstructing a disciplinary investigation.

In re Robert Joel Zakroff. Bar No. 163337. December 28, 2005. In a reciprocal matter from Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose identical reciprocal discipline and disbar Zakroff. The Maryland Court of Appeals disbarred Zakroff on the basis of two separate complaints: one involving misappropriation of client funds and another involving the mishandling of a bankruptcy matter.

In re Carl E. Zentz. Bar No. 196568. December 14, 2005. On the basis of discipline imposed by the Maryland Court of Appeals and the United States District Court for the District of Maryland, the Board on Professional Responsibility recommends that the D.C. Court of Appeals impose functionally identical discipline and publicly censure Zentz. The Maryland Court of Appeals reprimanded Zentz by consent for his violation of the Maryland Rules of Professional Conduct pertaining to competence, scope of representation, meritorious claims and contentions, candor toward tribunals, knowingly disobeying an obligation under the rules of a tribunal, unauthorized practice of law, inducing or assisting another to violate the rules of professional conduct, dishonesty, and conduct prejudicial to the administration of justice. The Maryland District Court reprimanded Zentz for the same conduct and barred him from practice in any bankruptcy court of the United States.

Disciplinary Actions Taken by the District of Columbia Court of AppealsOriginal Matters
In re Gene P. Belardi. Bar No. 218446. January 26, 2006. The D.C. Court of Appeals suspended Belardi for one year. Belardi entered a guilty plea in the United States District Court for the District of Columbia to three counts of making false statements to a government agency, a crime that did not constitute moral turpitude per se.

In re Beth Ann Carpenter. Bar No. 438529. January 19, 2006. The D.C. Court of Appeals disbarred Carpenter. Carpenter was found guilty by a Connecticut jury of capital felony, murder as an accessory, and conspiracy to commit murder, crimes involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a) (2001).

In re Rozan E. Cater. Bar No. 420942. December 1, 2005. The D.C. Court of Appeals suspended Cater for 90 days, to be served consecutively with the 180-day period of suspension in Cater I, with reinstatement conditioned upon full compliance with Bar Counsel’s requests for information and a showing that she is fit to resume the practice of law. Cater failed to respond to Bar Counsel’s inquiries and board orders to compel such responses in connection with four disciplinary investigations. Rules 8.1(b) and 8.4(d) and D.C. Bar R. XI, § 2(b)(3).

In re Billy L. Ponds. Bar No. 379883. December 15, 2005. The D.C. Court of Appeals suspended Ponds for 30 days, with reinstatement conditioned upon his filing with the Board on Professional Responsibility and Bar Counsel a certification that he has completed a continuing legal education course on legal ethics or criminal practice covering conflicts of interest. Ponds violated Rules 1.7(b) (conflict of interest) and 1.16(a)(1) (failure to withdraw when necessary to avoid violation of the rules) of the Maryland Rules of Professional Conduct, made applicable by D.C. Rule 8.5(b)(1) (choice of law), while representing a client in a criminal proceeding before the U.S. District Court of Maryland.

In re Julia A. Soininen. Bar No. 448700. December 22, 2005. The D.C. Court of Appeals disbarred Soininen, stayed upon a showing of Kersey mitigation, and placed her on three years’ probation subject to the conditions imposed by the Board on Professional Responsibility in its report and recommendation. Soininen failed to provide competent representation, failed to serve a client with skill and care, charged an unreasonable fee, engaged in reckless misappropriation, and engaged in conduct that seriously interfered with the administration of justice in connection with her service as guardian and conservator to a client and the client’s estate between 1997 and 2000. Rules 1.1(a), 1.1(b), 1.5(a), 1.15(a), and 8.4(d).

Reciprocal Matters
In re Steven M. Angel. Bar No. 405417. December 22, 2005. In a consolidated reciprocal matter from Oklahoma, the D.C. Court of Appeals publicly censured Angel in one matter and suspended him for five years with fitness in another matter. The Oklahoma Supreme Court publicly reprimanded Angel in the first matter. Thereafter, faced with 13 additional grievances under investigation in Oklahoma, and claiming mental distress caused by family illness, Angel tendered his resignation from the practice of law in Oklahoma. The Oklahoma court approved Angel’s resignation and directed him to reimburse the Client Security Fund for any money disbursed because of his conduct, struck his name from the roll of attorneys, and prohibited him from applying for reinstatement for five years.

In re Timothy Brown. Bar No. 366743. January 19, 2006. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed nonidentical reciprocal discipline and suspended Brown for 30 days, nunc pro tunc to March 16, 1994, with reinstatement conditioned upon his compliance with the restitution requirement imposed in Maryland. The Maryland Court of Appeals indefinitely suspended Brown, with conditions for reinstatement, on the basis of a joint petition. In that petition Brown effectively admitted that he charged his client an excessive fee; failed to respond to attempts to contact him; failed to return an unearned fee; failed to put a retainer in a separate account; and failed to respond to the Attorney Grievance Commission’s inquiries regarding his client’s complaint. This reciprocal matter, which had been dismissed without prejudice in 1994 after the court imposed an indefinite suspension upon Brown “on account of disability, that disability having resulted from the respondent’s long-term abuse of alcohol, marijuana, and cocaine,” was reactivated after Brown was conditionally reinstated to the practice of law in the District of Columbia on March 25, 2004.

In re Douglas F. Gansler. Bar No. 425465. December 15, 2005. In a reciprocal matter from Maryland, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and publicly censured Gansler. The Court of Appeals of Maryland publicly reprimanded Gansler for making improper out-of-court statements to the press in his capacity as state’s attorney for Montgomery County, Maryland, regarding three criminal prosecutions.

In re John L. Gizzarelli. Bar No. 183194. December 8, 2005. In a reciprocal matter from Massachusetts, the D.C. Court of Appeals imposed functionally identical reciprocal discipline and suspended Gizzarelli for five years with fitness. The Supreme Judicial Court of Massachusetts indefinitely suspended Gizzarelli. Gizzarelli, while retained to enforce an agreement for the purchase of real estate, failed to take enough action in his client’s matter, resulting in the dismissal of the case; to inform his client of the case standing or the fact that he had ceased to practice law; to deposit his client’s retainer in a segregated trust account; to refund the unearned portion of the client’s retainer; and to cooperate with the Massachusetts bar authorities.

In re Richard L. Gruber. Bar No. 314765. December 22, 2005. In a consolidated reciprocal matter from New Jersey, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Gruber. In one matter, the Supreme Court of New Jersey disbarred Gruber for multiple violations of the New Jersey Rules of Professional Conduct, including dishonesty and misappropriation of a client’s funds for his personal use. In a second matter, the New Jersey court reprimanded Gruber for misconduct, including gross neglect, lack of diligence, failure to communicate, and failure to cooperate with disciplinary authorities.

In re James R. Marlen. Bar No. 458330. December 30, 2005. In a reciprocal matter from Texas, the D.C. Court of Appeals suspended Marlen for two years, stayed in favor of two years’ probation subject to the conditions set forth in the Texas Grievance Committee judgment. The Texas disciplinary authority found that Marlen, who had been retained to prosecute a securities fraud claim, violated Texas Rules of Disciplinary Conduct pertaining to competent and diligent representation, communication with client, safekeeping property, and failure to respond.

In re Agostinho D. Reis. Bar No. 304436. December 15, 2005. In a reciprocal matter from New York, the D.C. Court of Appeals imposed identical reciprocal discipline and disbarred Reis. The Appellate Division, Supreme Court of New York, First Judicial Department, disbarred Reis for his failure to respond to the disciplinary committee or the court or to seek reinstatement within six months from the date of the order of suspension. The New York disciplinary authorities charged Reis with misconduct over a three-year period involving his representation of clients despite certifying that he was retired from the practice of law, misappropriation of client funds, acceptance of fees for work he did not perform, and abandonment of clients.

Contempt Proceedings
In re Matthew J. Marshall Jr. Bar No. 381184. January 12, 2006. The Honorable Harold L. Cushenberry Jr. of the Superior Court of the District of Columbia sentenced Marshall to 180 days’ incarceration for criminal contempt of court. Judge Cushenberry found that Marshall had practiced law in violation of the disbarment order issued by the D.C. Court of Appeals on November 22, 2000.

Informal Admonitions Issued by the Office of Bar Counsel
In re Michael R. Biel. Bar No. 35303. December 22, 2005. Bar Counsel issued Biel an informal admonition for practicing law while administratively suspended for nonpayment of bar dues, while serving as guardian and conservator in an intervention proceeding matter. Rules 5.5(a) and 8.4(d).

In re Michael L. Glaser. Bar No. 16899. December 29, 2005. Bar Counsel issued Glaser an informal admonition for filing a nonresidential attorney pro hac vice application, with the Arizona Corporation Commission, that contained representations he knew, or should have known, were false and failing to correct those representations. Rules 3.3(a) and 8.4(c).

In re William J. Howard. Bar No. 45559. December 27, 2005. Bar Counsel issued Howard an informal admonition for failing to keep his client reasonably informed about the status of a matter and to comply with reasonable requests for information, while representing his client in a collection matter. Rule 1.4(a).

In re Elise A. Joyner. Bar No. 416485. December 28, 2005. Bar Counsel issued Joyner an informal admonition for failing to safeguard entrusted funds she received on behalf of a client in which two medical providers had a third-party interest. Joyner’s client disputed the medical provider’s entitlement to the funds and Joyner delivered the disputed funds to the client. The ethical rules require that the lawyer decline to release disputed funds to either the client or the third party until the dispute is resolved. Rule 1.15(c).

In re John S. Lopatto III. Bar No. 965426. September 23, 2005. Bar Counsel issued Lopatto an informal admonition for engaging in technical commingling. Lopatto failed to keep separate his personal monies from entrusted funds he received in connection with his representation of clients, in that he failed to withdraw earned fees promptly from his trust account. Rule 1.15(a).

In re Jacqueline J. Moore. Bar No. 228908. December 29, 2005. Bar Counsel issued Moore an informal admonition. While serving as the court-appointed fiduciary for an adult ward of the Probate Division of the Superior Court, Moore failed to file, for at least five years, the required inventory within the required time after her appointment in 1995 and the required annual accounts with the probate court. In addition, Moore failed to file the necessary final account as required following her resignation as conservator appointed by the Superior Court. Rules 1.3(a), 1.3(c), 1.16(d), and 8.4(d).

In re Keith J. Smith. Bar No. 415529. December 28, 2005. Bar Counsel issued Smith an informal admonition for failing to provide a writing setting forth the rate or basis of his fee, while representing his client in a probate matter. Rule 1.5(b).